SC to decide if public interest can trump right to privacy


NEW DELHI: The distinction between public interest and right to privacy has never been thinner — and more important. India’s top industrialist Tata Group Chairman Ratan Tata’s petition to Supreme Court, asking for a bar on leaks of any more tapes of his phone conversation with lobbyist Niira Radia, has legal luminaries debating where the fine line between public interest and privacy really lies.

The case is scheduled for hearing on Thursday.

In his petition filed on Monday, which has so far not been made available to the press, Tata is reported to have claimed that his conversations with Radia were personal in nature and while government has the right to tap phone conversations in public interest, such conversations should not have been leaked but be used strictly for the purposes of investigation.

Tata has asked that the government fix the responsibility for the leaks and take action against officials who were responsible. The government has already ordered an inquiry into the leaks.

Supreme Court lawyers that ET spoke to say that the outcome of the case hinges on whether public interest can trump over right to privacy.

“This is not about Mr Tata’s right to privacy, but about Ms Radia’s activities,” says lawyer Dushyant Dave

“There is a fine balance between the right to privacy and the public’s right to know. But if the information is of vital public interest, that trumps the right to privacy,” he adds.

Advocate Mahesh Jethmalani has a similar view. “If the phone tap is legitimate and authorised, then the right to privacy must succumb before the overwhelming public interest,” he says.

Lawyer and legal scholar Rajeev Dhavan points out that there are two issues with the right to privacy. “First, if something is already in the public domain there is no question of restraining its publication. Second, while someone may claim privacy or the need to safeguard commercial interests, this is overridden if the information is in the public interest.”

Then there is the issue of who’s responsible for the leak. According to Jethmalani if a public official has leaked the documents, then it may be a case of breach of trust, since he or she could be in violation of their professional responsibilities.

“However a journalist who gets the information and publishes it can claim the public interest as a defence,” he adds.

Jurist, Member of Parliament and national spokesperson of the Congress, Abhishek Manu Singhvi says: “Rights under the Indian Constitution are not absolute. Privacy, though traceable to the right to life under Article 21, is always liable to be hedged in by reasonable restrictions – for example in the interests of national security, or the prevention or solution of crimes.”

So how does one decide where privacy ends and public interest begins? “It is crucial that citizens, regulators, the police and courts follow a balancing approach based on the nitty gritty facts of a particular case – generalisations without reference to facts are bound to be inaccurate,” says Singhvi.

The taps on Radia’s phone, which were authorised by the Home Secretary and which took place over the course of a year starting late 2008, were done as part of an investigation by the Income-Tax Department.

Reportedly over 5,000 conversations by Radia were recorded. Of these, about a hundred or so conversations, with journalists, politicians and others, including Ratan Tata , have appeared in the media.


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